False Pretense Rape Isn’t a Thing

“He had a little checklist of things I was comfortable doing in the future, like are you fine with bondage, are you fine with whatever. He checked [it] off and said fine, all right we’ll take some pictures. All the while, I was drinking. He was just making me more drinks and more drinks.”

[Allysia] Bishop says she drank so much that she nearly blacked out. And that’s when she claims that Matt said they had to have sex. “He was like, ‘Well, we have to have sex, because if we don’t then how am I going to know you’re for real and you’ll actually be able to do this in the industry? So you have to prove to me you’re not going to bail out.'”

As The Stranger revealed in a June 2016 expose, Hickey‘s scam involved posing as a woman, Deja Stwalley, he‘d had an unrequited crush on in middle school. That’s creepy enough, but it gets much worse: he’d pretend to be a porn recruiter on Facebook, friend women he found attractive and invite them to do a test photo shoot at his (allegedly Stwalley’s photographer’s) apartment.

When the luckless women arrived, Hickey’d ply them with small talk and vodka screwdrivers, take nude photos and then, as the pièce de résistance, get them to “bang down” with him to prove they were serious about porn. (Photo credit: The Stranger)

It’s impossible to look at or even write about these chats without feeling your skin crawl. Worse, Hickey wasn’t satisfied with scamming them into free sex once: he kept coming back, spamming them with more Facebook demands for “hot newdz.”

Word about Stwalley and her ultra-skeezy photographer got around, and when an internet community decided to do some sleuthing, Hickey was exposed. There was immediate pressure on law enforcement to do something, as women who believed they’d been victimized went to police. According to the Stranger, cops were sympathetic but unreceptive to the suggestion that Hickey should be charged:

[Liz] Shearer [another of Hickey’s accusers] says that the male[1] officer she spoke to said her case would be difficult to prosecute as sexual assault […] “[The detective] said everything that I’m telling him is really fucked up, but that there are no grounds for a sexual assault case,” [a third accuser] said.

Three of Hickey’s accusers, all of whom acknowledge deciding to have sex with him, told the Stranger they consider what happened to them a crime.

Shearer and two others say they had sex with Stwalley’s photographer because they thought they had to for a porn audition. In hindsight, they consider what happened to them sexual assault or fraud.

The Stranger also interviewed Maggie McNeill, Seattle’s best-known call girl and sex-workers‘ rights activist, who took an even harder stance. In her opinion – recently reiterated at her blog – Hickey and his ilk should be prosecuted for rape:

Consent obtained under false pretenses is not consent, and sex without consent is rape.

What Maggie said reflects the conceptual drift that accompanies so many sex-related words these days, from “rape” (which used to mean physically forcing someone to sleep with you and now describes voluntary drunken campus hookups) to “sex” as in a person’s biological makeup (which used to turn on whether you had a Y chromosome and now encompasses any of 52 dueling gender identities.) Here she twists “consent,“ already an unpleasantly squishy word, to include a new and unspecific requirement that the person who gets your go-ahead not do so “under false pretenses.“

This sort of redefine-language-according-to-your-beliefs thing is fine when you’re writing an assignment for your gender studies prof, but many of these words also have legal significance. Is what Maggie said reflective of the law of the state of Washington? Or just her personal feelz?

WA criminalizes three kinds of adult rape: first, second and third-degree. Third-degree rape is the interesting one, and the relevant parts of the statute provide as follows:

(1) A person is guilty of rape in the third degree when, under circumstances not constituting rape in the first or second degrees, such person engages in sexual intercourse with another person:

a) Where the victim did not consent as defined in RCW 9A.44.010(7), to sexual intercourse with the perpetrator and such lack of consent was clearly expressed by the victim’s words or conduct […]

“Consent” means that at the time of the act of sexual intercourse or sexual contact there are actual words or conduct indicating freely given agreement to have sexual intercourse or sexual contact.

There are two immediate implications to this. First, Maggie’s wrong to say “sex without consent is rape.“ (In fact, it’s only rape if the lack of consent is clearly communicated.) Second, there’s absolutely no basis for her claim that “consent obtained under false pretenses is not consent.“

At best, she could try to argue consent given under “false pretenses” – whatever that means – is not “freely given,” an extraordinarily vague phrase the lege doesn‘t bother to define. First, nice try. Second, as a matter of policy, this is such a bad idea even Slate’s Amanda Marcotte – less a broken clock than one of those old-fashioned alarms with oversized bells and no snooze button – can adequately explain why:

[Laws criminalizing rape by deceit are] so vague[2] and wide-reaching that it’s easy to see how pretty much everyone could be considered a rapist, because, as any quick perusing of OkCupid can tell you, representing yourself as someone you are not is a universal behavior.

According to a police affidavit attached to his charging documents, Seattle PD opened an investigation into Hickey after the internet community that exposed him took its allegations public. Helped by a boost in publicity from the Stranger’s article, the cops eventually found ten women who claimed Hickey had raped them. Notably, some of these women alleged Hickey had gotten them so drunk they were incapacitated, maybe even outright roofied them. That satisfies the elements of second-degree rape:

(1) A person is guilty of rape in the second degree when, under circumstances not constituting rape in the first degree, the person engages in sexual intercourse with another person:

(b) When the victim is incapable of consent by reason of being physically helpless or mentally incapacitated […]

Almost as importantly, none of the four women whose allegations gave rise to charges were quoted in the Stranger’s article saying they chose to have sex with Hickey.

Whether things actually happened the way they claim is a different, and fair, question. According to the affidavit, one of the women said she a) was raped by Hickey after he incapacitated her with a drink but b) allowed him to take photos of herself masturbating after she had the drink, which sounds a little inconsistent. It’s also eyebrow-raising that of the four women, only one went to police after the alleged rape occurred. Why, if Hickey roofied and raped them, did they wait until they learned he wasn’t a real porn photographer to come forward?

But whether or not the allegations ultimately hold up in court, the fact is prosecutors found a way to charge Hickey that didn’t involve someone’s fantasy version of law. That’s good news for anyone who prefers to be ruled by statute, not passionate people’s feelz.

As for Hickey, he gets his day in court. Though he probably shouldn’t mix the jury any vodka screwdrivers.

[1] Yes, the Stranger’s reporter bothered to write “male.“ Presumably, a cop who states the law in a way a woman doesn’t like is a sexist.

[2] Yes, she conflates vagueness and overbreadth, but by Marcotte’s standards, this is like Einstein forgetting to cross a “t.“

There are two immediate implications to this.
First, Maggie’s wrong to say “sex without consent is rape.“ (In fact, it’s only rape if the lack of consent is clearly communicated.)
Second, there’s absolutely no basis for her claim that “consent obtained under false pretenses is not consent.“

There’s a 1975 case here in NY your mean-ass editor may be familiar with called People v. Evans.

The Judge ends with this:
“So bachelors, and other men on the make, fear not. It is still not illegal to feed a girl a line, to continue the attempt, not to take no for a final answer, at least not the first time…”

Apparently the desire for scumbags to use lines to bed women is still going strong. Who would have thought.

I can think of one way “false pretense” could be involved in rape. The perpetrator makes an explicit or implicit threat of harm to the target if the target does not consent, but cannot in fact carry out the threat – it’s a bluff.

Note that I write “cannot”, in the sense that it is physically impossible for the perpetrator. The perpetrator may be psychologically incapable of carrying out the threat to shoot the target’s dog, but it’s still in his power and the threat is effectively real.

However, if he claims that he will have the target fired from a job by his friend who owns the company (whom he never even met), or murdered by his accomplices in a notorious street gang (which he read about in the news), then clearly his threat is a false pretense.

No, you are not right about my reaction to your conclusions. However, I do hate it when you use “gag” rather than “puke.” It seems so, how shall I say it, French.

All the best.

RGK

Disclaimer: Advertising content does not reflect any knowledge of or endorsement by Fault Lines or any contributor. The advertisements you see on your device are what robots think you are interested in buying, not Fault Lines or its writers.